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What is the meaning of trade mark and patent rights in
Govt. of India and how it is helpful in marketing
management? Explain with suitable products.
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Answer Posted / anand.mnj
GLOBAL IPR LAW CONSULTANTS (INDIA)
The Intellectual Property Rights like Patents, Trademarks,
Copyrights etc. are protected under various National Laws
of India. With the formation of WTO and India becoming a
party to TRIPS agreement, Indian Government is committed to
amend various national laws to make it conformity with
International Commitments. The Intellectual Property Rights
in India can be protected under various laws:
Trademarks:
To meet international commitments, Indian Government has
enforced with effect from September 15, 2003, The Trade
Marks Act 1999 and Trade Marks Rules 2002. The main
features of new trademarks act have been described at the
end.
In India, you can protect a trademark for goods or
services, on the basis of either use or registration or on
basis of both elements. A registration of a trademark is
always granted only for a limited period of time, but it is
renewable without restriction in time. Therefore, a
trademark may be protected indefinitely. The trademark
signifies the quality of product and services of the
trademark owner, it is in the interest of corporations or
individuals to get the trademark registered in India to
exclude others from using the same or deceptively similar
trademark in India
With effect from September 15, 2003, Trade Marks Act, 1999
have been enforced, old Trademarks and Mechandising Act,
1958 has been repealed. New Trade Marks Act 1999 is TRIPS
compliant and more in conformity with US Federal and State
Trade Marks laws than it was earlier. Service Marks are now
registrable in India.
The salient features of Indian Trade Marks Act 1999 are
given below.
Salient Features of New Indian Trade Marks Act 1999
(Enforced with effect from September 15, 2003)
TOP
S.No.
Indian Trade Mark Act 1999 Repealed Trade and Merchandise
Act 1958
1.
Definition of Trade Mark broadened to include goods and
services. Shape of goods, their packaging and combination
of colours included,
Earlier only Trade Marks in relations to goods only were
registrable
2
Service marks also registrable
3.
Well Known Trade Marks defined for strong protection.
Dilution concept recognized. Registration may be refused-
if mark is a reproduction or imitation of a well-known mark
even in respect of different goods or services.
4
No provision for smell or sound marks
5
Term of registration of Trade Mark made 10 years with
provision for renewal
Earlier it was 7 years, with provision for renewal
6
Scope of infringement of registered trademark broadened.
Phonetic, Visual, Meaning similarity recognized
7
Comparative advertisement permitted
8
Filing of suit for infringement simplified.
9
Non-registered Licensing of registered Trade Mark
permitted-Permitted User
10
Assignment of unregistered trademark without goodwill of
business possible
11
Provision for registration as Registered User simplified
12
Creation of Intellectual Property Boards to hear appeals
from the decisions of Registrar of Trademarks (or
Controller of Patents)
This is similar to TTAB and BPAI in USA
13
Scope of Infringing Activities widened. Stringent Measures
for enforcement of trademark rights e.g. enhanced
punishment, increased imprisonment term, increased fine,
direct complaint before police officer, search and seizure
by police, restraining infringer from disposing of his
assets
14
Single Application of same mark for multiple classes
Earlier separate application was to be submitted for each
mark and for each class.
15
Registration of Collective Marks for AOP
16
Criteria for registrability of Trademark simplified
17
Marks not registrable elaborated
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